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Click here for the full text of this decision FACTS:A jury convicted appellant of aggravated assault and, finding that he had two prior felony convictions, assessed his punishment at 35 years’ imprisonment. On appeal, appellant argued that the trial court violated his right to confrontation when it allowed a police officer to testify about one of the assault victim’s (Donald Norman) out-of court statements made during a hospital interview. The court of appeals agreed that admitting the statements under the excited-utterance exception to the hearsay rule violated the Sixth Amendment under the standard announced in Crawford v. Washington, 124 S.Ct. 1354 (2004). The court of appeals found, however, that the error was harmless because the properly admitted evidence included testimony from three different eyewitnesses that appellant, without provocation, struck several people, including the complainant, with a board. HOLDING:The conviction is affirmed; because the court of appeals did not address whether the Crawford violation was harmful at the punishment stage, the case is remanded to that court for further proceedings. The excited-utterance and testimonial hearsay inquiries are separate, but related. While both inquiries look to the surrounding circumstances to make determinations about the declarant’s mindset at the time of the statement, their focal points are different. The excited-utterance inquiry focuses on whether the declarant was under the stress of a startling event. The testimonial hearsay inquiry focuses on whether a reasonable declarant, similarly situated (that is, excited by the stress of a startling event), would have had the capacity to appreciate the legal ramifications of her statement. These parallel inquiries require an ad hoc, case-by-case approach. An inquiring court first should determine whether a particular hearsay statement qualifies as an excited utterance. If not, the inquiry ends. If, however, the statement so qualifies, the court then must look to the attendant circumstances and assess the likelihood that a reasonable person would have either retained or regained the capacity to make a testimonial statement at the time of the utterance. A reasonable person in Norman’s shoes would have either retained or regained the capacity to make a testimonial statement at the time of the utterance, and a reasonable person would have appreciated the fact that the officers were conducting a criminal investigation and collecting evidence for a prospective prosecution. The fact that Norman’s statement also qualifies as an excited-utterance exception under the Texas hearsay rule does not alter its testimonial nature. Because Norman was not available to testify at trial, and appellant had no prior opportunity for cross-examination, the court of appeals properly held that admission of Norman’s statement violated appellant’s right to conffrontation under the Sixth Amendment of the U.S. Constitution. The evidence of appellant’s guilt was overwhelming and the out-of-court statement by Norman added nothing to that evidence nor was it at all likely to sway a jury from a state of nonpersuasion to persuasion of his guilt. The court of appeals did not address whether Norman’s out-of-court recital of appellant’s racially charged statement was harmful to appellant’s punishment. The court remands this case to the court of appeals to decide if the confrontation violation was harmful during the punishment stage. OPINION:Cochran, J., delivered the court’s opinion.

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